Could P2P blocking be legalized by new net neutrality rules?

Could the FCC's draft net neutrality rules actually allow the very behavior …

The Electronic Frontier Foundation can't believe it: the FCC's network neutrality draft rules, if adopted in their current form, might give Comcast permission to flat-out block BitTorrent—precisely the scenario that led to the rules being drafted.

It's a shocking claim, if true. Could FCC Chair Julius Genachowski's big push for network neutrality actually authorize the very conduct it was (ostensibly) drafted to prevent, indiscriminate blocking of the bluntest kind?

A massive loophole?

The EFF is concerned about a particular pair of clauses in the current draft rules (PDF) for network neutrality. Those clauses impose no obligation on ISPs to permit "the transfer of unlawful content" or the "unlawful transfer of content." In other words, ISPs don't have to be "neutral" about illegal content, and those trafficking in it can't complain to the FCC is their content is slowed, blocked, throttled, folded, spindled, or mutilated.

If there was any doubt about this, another section of the draft rules make it clear: "Furthermore, we have no intention of protecting unlawful activities in these rules."

Fred von Lohmann, an EFF copyright lawyer, sees danger here. "That means that so long as your ISP claims that it's trying to prevent copyright infringement, it's exempted from the net neutrality principles and can interfere with your ability to access lawful content, use lawful devices, run lawful applications, or access lawful services," he said last week.

Today, the EFF ramped up the rhetoric, saying that the rules have "a loophole that would theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was 'reasonable network management' intended to 'prevent the unlawful transfer of content.'"

But it's important to remember that the rule isn't new. The FCC's Internet policy statement (PDF), drafted back in 2005 by a very different FCC, set out four "Internet freedoms." The first said that "consumers are entitled to access the lawful Internet content of their choice." The policy statement never provided protection for unlawful content.

It was this policy statement that was regularly cited in the Comcast case, when the ISP was accused of interfering with BitTorrent traffic, regardless of the content being transferred. The company received a wet-towel-snap-to-the-backside from the FCC for its actions.

The other key point is that the new draft rules do not craft an exception to net neutrality for ISPs who are "trying" to stop unlawful content transmission; the exception only applies to actual transfers of unlawful material. Under the EFF's reading of these provisions, an ISP could simply throttle all Web streaming video traffic on the grounds that some of it is unlawful. An ISP could block access to BitTorrent. Particular Web sites like The Pirate Bay could simply be blocked wholesale. Services like Rapidshare could be axed on the same ground. Access to Usenet could be curtailed. In essence, anything could be blocked so long as ISPs could show they were "trying" to stop unlawful content.

Fortunately, this isn't what the draft rules say; the exception only applies to content that is in fact unlawful. The flip side of this is a positive statement: "The nondiscrimination principle would prohibit broadband Internet access service providers from favoring or disfavoring lawful content, applications, or services accessed by their subscribers." That's pretty clear. Any ISP that attempts to do something like block BitTorrent outright would quickly block "lawful content" and would run afoul of the new nondiscrimination principle.

The "reasonable" trump card

But von Lohmann's a sharp lawyer, and he's not crazy. So what is he talking about? What appears to worry him is the fact that the exceptions both exist under the broader heading of "network management." And "network management" is defined as "reasonable practices employed by a provider of broadband Internet access service." Thus the worry—could an ISP get away with claiming that some particular block is "reasonable"? What if 70 percent of the content blocked was unlawful—would that be "reasonable"? What about 80 percent? 90? 95?

Future administrations might well agree that throttling a P2P protocol is reasonable, given that some high percentage of its content is unlawful. And you can bet that groups like RIAA and MPAA will try to make this happen.

The draft rules do address this scenario, though. The FCC says that "it appears reasonable for a broadband Internet access service provider to refuse to transmit copyrighted material if the transfer of that material would violate applicable laws." But it adds that "such a rule would be consistent with the Comcast Network Management Practices Order, in which the Commission stated that 'providers, consistent with federal policy, may block... transmissions that violate copyright law.'"

In other words, this isn't quite a free for all in which the rules on being "reasonable" could be twisted to justify any practice. The FCC provides explicit guidance on dealing with copyrighted works, and that guidance says clearly that ISPs cannot block an entire protocol like BitTorrent (this was the Comcast order being referenced) as they seek to stop the unlawful transfer of copyrighted works.

The rulemaking on net neutrality is ongoing, and the FCC wasn't willing to comment officially on interpretations of the draft rules. However, FCC sources did make clear to Ars that, in their view, the draft rules would not lead to the EFF's nightmare scenario. It is important to note that the FCC is conducting its rulemaking in order to learn about potential problems with its ideas, and the language of the rules may still be tweaked significantly.

What is crystal clear is that the draft rules do allow targeted ISP blocking of illegal content on P2P networks, assuming that the particular method of identifying such traffic passes legal muster (i.e., isn't classed as "wiretapping," which is a potential pitfall of deep packet inspection methods). As footnote 230 notes, "We also propose that broadband Internet access service providers may take action to counter unwanted or harmful traffic such as spam and malware, may decline to carry unlawful traffic, or may decline to carry traffic if the transfer of the content is prohibited by law, including copyright law."

42 Reader Comments

BitTorrent is used to transfer copyrighted works without permission, sure. But it also has substantial noninfringing uses- I get every Linux ISO I download through BitTorrent, for example, along with any other large file or collection of files if I can because it's just a great protocol for transferring those files. When I get music from Jamendo, I first check to see if the BT swarm for the album is alive (unfortunately it often isn't). For grabbing large files BitTorrent beats the pants off of http downloads- and it'd be sad to see this great protocol universally condemned simply because of copyright infringement, of all things.

If we let ISPs block BitTorrent and say it's to stop piracy, how long until that same logic carries over to protocols like IRC and instant messaging? Both of those can be used to download copyrighted works, after all. Even email and http can be used for piracy.

ISPs have three choices. Blanket-block protocols, which creates problems of its own; selectively block traffic determined to be infringing, which also creates problems of its own due to the controversy of DPI; or play the part of the "common carrier" and don't block a damned thing. Guess which one I support.

I downloaded the startrek online beta client via torrent not too long ago. I actually looked for it on a torrent search engine before doing a forum search for a torrent. Since I found the torrent in the forum first, I went with that and didn't realize it also happened to be the official torrent listed on the download page until later :P. Torrents are great for big stuff.

Originally posted by DaemonBlood:We use bit torrent to distribute content to over 2500 servers so we'd be pretty ... upset .. if our isp throttled this traffic.

Is it possible for isps to throttle UDP traffic though? This is the way most bit torrent clients seem to be going. Would they just have to throttle ALL udp traffic?

UDP is very common for games, you don't care where the guy was a few ms ago if there is a new packet with where he is now and enough extra data to figure out what the dropped packet probably had in it. ISP's throttling/"delaying" UDP outright would cause even more outrage than blocking torrents I think.

Originally posted by bicarb:I downloaded the startrek online beta client via torrent not too long ago. I actually looked for it on a torrent search engine before doing a forum search for a torrent. Since I found the torrent in the forum first, I went with that and didn't realize it also happened to be the official torrent listed on the download page until later :P. Torrents are great for big stuff.

At least one version of their patcher/launcher also used BT to help stop their servers from choking on big patches.

Originally posted by bicarb:I downloaded the startrek online beta client via torrent not too long ago. I actually looked for it on a torrent search engine before doing a forum search for a torrent. Since I found the torrent in the forum first, I went with that and didn't realize it also happened to be the official torrent listed on the download page until later :P. Torrents are great for big stuff.

At least one version of their patcher/launcher also used BT to help stop their servers from choking on big patches.

yea, I think one of the recent Q&A things mentioned their desire to use torrents whenever possible. Also I think Turbine's download manager uses a torrent of some kind. I don't doubt WoW uses torrents as well.

I don't use BT for illegal content, so I don't end up using it very much. However, when I *DO* want something really big from a non-commercial vendor or artist spreading their own stuff it's often hosted on BT instead of HTTP. I'm hoping the % of legal traffic goes up (and soon) - as the article says, I can easily see the entire service blocked or throttled just because of the pirates.

How do they determine what is and isn't illegal? Who makes that call? Do the ISPs have a huge blacklist of what's legal, and what isn't?

The ONLY way this works is by monitoring and filtering your internet access. THE ONLY WAY.

That law, in effect, demands it. There is no other way anything like that could ever be implemented.

The only mistake in the article is that it thinks that the ISP will attempt to throttle network traffic and use the "stop copyright violations" as a excuse.

He is wrong. The government is leaving the hole open for them to come in and say that the ISP is required to implement filters and controls to stop copyright violations. The pro-net neutrality folks are delusional to think that if they give the government power to regulate access to the internet they will not use it to try to curtail illegal activities and institute monitoring of internet connections in ISPs.

Look at what happened in Australia. They instituted controls and filters on the internet to "protect the children" and told people that it was a "opt out" program. When it turned out that the public was lied to and that the filters and controls were not really opt out (just reduced on request) then the government responded that there was no "opt out" button for people looking to engage in illegal activity.

Net Neutrality == Trojan horse for further laws.

Its a very cool concept and net neutrality by itself would be a wonderful thing to get passed into law. But I know it will not stop there. All you have to do is look at history. Look at what happened with the telephone system and the radio spectrum.

Now radio spectrum is handed out only to the largest and most powerful telecommunication corporations in order to make them larger and more powerful. What is the justification? The FCC says it is required by public interest to sell off spectrum access to the highest bidder.

And in those same telephone and communications networks the FBI and other government agencies have built-in back doors to monitor call history and track cell phone users. I suppose it is a "rub my back and I'll rub yours". Google for "Post it notes FBI" and you can see the end result of all this.

Remember how most major ISPs fought to keep customer records secret from MPAA and RIAA lawyers? Well you can probably kiss that goodbye quite quickly after you hand over control of your internet access to the government. It's going to be hilarious to see how much money those folks pour into lobbyists once the first laws controlling internet access get passed.

The ISPs cannot be trusted with powers to police the internet, which this draft would implicitly grant. Any words such as 'lawful' or 'unlawful' should be removed and deferred to criminal legislation, where it belongs.

Originally posted by Hed 64:What did people think would happen once the government got involved?

I sorta figured that people would begin speculating without too much basis, find a worst-case scenario, and then some of them would blame government involvement for the as-yet purely speculative result.

Illegal content is illegal content, and while I've been known to download some questionably legal content in the past when there is no other recourse to getting the material, I do have to say that this seems like a worst-case scenario. ISPs have always had the ability to shut down an inet connection because of infringing uses however it usually took a notification of some sort to the ISP itself from the 'owner' of that content.

What this sounds like it does is bypass that notification and gives the ISP the power to determine what is infringing, and what is not, and that I believe is the real issue. I don't think that a portal should have the power to determine what I am downloading is legal or not, no matter how I get it.

What happens when youtube/hulu/video-website-of-the-month service starts to get degraded because of this?

Originally posted by DaemonBlood:We use bit torrent to distribute content to over 2500 servers so we'd be pretty ... upset .. if our isp throttled this traffic.

Is it possible for isps to throttle UDP traffic though? This is the way most bit torrent clients seem to be going. Would they just have to throttle ALL udp traffic?

UDP is very common for games, you don't care where the guy was a few ms ago if there is a new packet with where he is now and enough extra data to figure out what the dropped packet probably had in it. ISP's throttling/"delaying" UDP outright would cause even more outrage than blocking torrents I think.

UDP is a layer 4 protocol anyway, ISP traffic management occurs much higher in the stack than that.

The absurdity here lies in the fact that without this provision you'd essentially be giving more property rights to people for property they don't own than you would to the ISPs who actually own the pipelines.

So you try to fix this problem and you get a wonderful regulation like this. Makes you wonder why not just leave it alone in the first place...

So you try to fix this problem and you get a wonderful regulation like this. Makes you wonder why not just leave it alone in the first place...

A) Because all corporations are evil?B) Because everything must be regulated and controlled otherwise we might fall victim to some sort of boogyman?C) Current government regulation restricting access to the radio spectrum with the combination of state and local laws and land grants to corporations used to purposely establish regional corporate monopolies have pretty much destroyed any hope that people would have a choice between multiple IP carriers offering access to the internet. That the mistakes in past government has eliminated any chance of competition between ISPs. That this is a government created problem so the logical thing to do is to just layer massive new regulation on old crappy regulation and hope everything works out.D) All the above.

From the article:It was this policy statement that was regularly cited in the Comcast case, when the ISP was accused of interfering with BitTorrent traffic, regardless of the content being transferred. The company received a wet-towel-snap-to-the-backside from the FCC for its actions.

So, on the Smack-Down-o-Meter, where does the "wet-towel-snap-to-the-backside" rank? Is that above "slap to the wrists" and below "bitch slap"? I think we need to solidify this.

So you try to fix this problem and you get a wonderful regulation like this. Makes you wonder why not just leave it alone in the first place...

A) Because all corporations are evil?B) Because everything must be regulated and controlled otherwise we might fall victim to some sort of boogyman?C) Current government regulation restricting access to the radio spectrum with the combination of state and local laws and land grants to corporations used to purposely establish regional corporate monopolies have pretty much destroyed any hope that people would have a choice between multiple IP carriers offering access to the internet. That the mistakes in past government has eliminated any chance of competition between ISPs. That this is a government created problem so the logical thing to do is to just layer massive new regulation on old crappy regulation and hope everything works out.D) All the above.

A*) because corporations are not looking out for my best interests?B*) Because unregulated everything leads to bogeymen?C*) Economic factors combined with social priorities (like not having 50-million wires coming into my house so I can have a large choice of ISPs) combine to make competition in this sort of capital-intensive business extremely unlikely. Poor regulatory choices in the past didn't help, but cannot account for the continuing lack of competition (e.g. in CATV delivery, where no more exclusive franchises exist and haven't for over 15 years).D*) All of the above.E) Some combination of drag's and my ideas?

Whine about government all you like, but I've seen no evidence that 'correcting' poor regulatory choices from the past by refusing to regulate anything from here on out is going to help anyone but large corporations and those who wish to whine about how terrible government is. I don't see those as positive results, myself.

Originally posted by hpsgrad:Whine about government all you like, but I've seen no evidence that 'correcting' poor regulatory choices from the past by refusing to regulate anything from here on out is going to help anyone but large corporations

Wouldn't this statement imply that large corporations are at a disadvantage in influencing governmental regulatory bodies? If not please explain...

Originally posted by hpsgrad:Whine about government all you like, but I've seen no evidence that 'correcting' poor regulatory choices from the past by refusing to regulate anything from here on out is going to help anyone but large corporations

Wouldn't this statement imply that large corporations are at a disadvantage in influencing governmental regulatory bodies? If not please explain...

"Helping someone out" isn't tied to their status to begin with. If you give a billionare a dollar you're still helping him out. If you purposfully look the other way when someone is ripping off an old lady, you're still helping him out. If you cause a problem that's benificial to telcos that have learned to take advantage of your mistakes and do nothing to rectify those past mistakes you're still helping them out.

Originally posted by hpsgrad:Whine about government all you like, but I've seen no evidence that 'correcting' poor regulatory choices from the past by refusing to regulate anything from here on out is going to help anyone but large corporations

Wouldn't this statement imply that large corporations are at a disadvantage in influencing governmental regulatory bodies? If not please explain...

Well, perhaps. It's more like, large corporations are guaranteed to do whatever they want now, but if there's a regulatory body explicitly looking out for citizen's interests, there is a chance of limiting what those corporations engage in, or at least punishing them when they violate the regulations. Obviously large corporations can, and do, influence regulatory bodies (and sometimes capture them).

My power to affect a telecom corporation via market means ends (in a practical sense) with my ability to vote with my wallet, which puts the corporation at something of an advantage, since my $40/month doesn't really matter to them. Sure, I might be able to shame them using the press, etc., but that's both chancy (people might just laugh at me instead) and expensive for me (in time, if nothing else). OTOH, my ability to affect a regulatory body is much more on-par with the corporation being regulated.

Regulation isn't magical, and it's quite possible to make things worse with regulation. But it's irresponsible to simply ignore regulation as a tool for constructing the society we want to have. It's a tool, which means it can be misused, but then so can markets.

Originally posted by hpsgrad:Well, perhaps. It's more like, large corporations are guaranteed to do whatever they want now, but if there's a regulatory body explicitly looking out for citizen's interests, there is a chance of limiting what those corporations engage in, or at least punishing them when they violate the regulations. Obviously large corporations can, and do, influence regulatory bodies (and sometimes capture them).

It's more like (insert anyone group or individual here) is guaranteed to do whatever they want now (in lieu of regulation). This is the phrasing I'd agree with. Further the intent of these regulatory bodies is irrelevant, the only thing that matters is their effect.

quote:

My power to affect a telecom corporation via market means ends (in a practical sense) with my ability to vote with my wallet, which puts the corporation at something of an advantage, since my $40/month doesn't really matter to them.

If there's no regulation where does a corporation make any money at all besides consensual buisiness transactions? Nothing matters to them other than your or anyone else's $40 dollars. The only way that something else could possibly be more important to them is if forces outside the market (ie regulations) enter into the equation.

Even if they did some day block the protocol it is not like they will be permanently killing or even heavily reducing piracy. Temporarily curbing it? Sure, that is bound to happen. However, they will always find another way.

It's a cat and mouse game and this particular cat has no choice but to be a very slow beast bound to the walls it lives in while the super fast mouse is running in and out of all sorts of holes and crevices.

My power to affect a telecom corporation via market means ends (in a practical sense) with my ability to vote with my wallet, which puts the corporation at something of an advantage, since my $40/month doesn't really matter to them.

If there's no regulation where does a corporation make any money at all besides consensual buisiness transactions?

Are you implying that the 'proper' way of dealing with a situation where all available ISPs in my area engage in activities that I dislike is to simply not accept any ISP's services until a new one comes along or I move?

We get suggestions like that from time to time around here, but I don't want to jump to any conclusions about what you're doing.

If there's no regulation where does a corporation make any money at all besides consensual buisiness transactions? Nothing matters to them other than your or anyone else's $40 dollars. The only way that something else could possibly be more important to them is if forces outside the market (ie regulations) enter into the equation.

What we have here is known as a collective action problem. It goes something like this: Some number of ISP customers, if they took the time to think about it, would demand network neutrality. This number is large enough to convince the ISP to uphold network neutrality if that many customers threatened to switch. (This can be effective even if the competing ISP does not support network neutrality: You're willing to switch to punish your current ISP for not supporting it and get them to change their policy, regardless of what the competing ISP is doing.) So, the optimal thing for people to do is to threaten to switch as a group if the ISP doesn't give in to their demands, right?

The problem is that not all of these people have considered the proposition and even among those who have, they aren't organized. Organization is expensive. How do you find the like-minded people? How do you get a consensus on which ISP to switch to/from and when? Who negotiates with the corporation on behalf of the customers? If you have to carry out a threat, how do you make sure enough people follow through on it to make the desired impact?

The cost of organizing is frequently prohibitive, but without it the optimal outcome is not achieved. The market fails to serve its function. That is why people turn to regulation: It has the potential to achieve the desired outcome without having to overcome the organizational costs that the market can't.

If there's no regulation where does a corporation make any money at all besides consensual buisiness transactions? Nothing matters to them other than your or anyone else's $40 dollars. The only way that something else could possibly be more important to them is if forces outside the market (ie regulations) enter into the equation.

What we have here is known as a collective action problem. It goes something like this: Some number of ISP customers, if they took the time to think about it, would demand network neutrality. This number is large enough to convince the ISP to uphold network neutrality if that many customers threatened to switch. (This can be effective even if the competing ISP does not support network neutrality: You're willing to switch to punish your current ISP for not supporting it and get them to change their policy, regardless of what the competing ISP is doing.) So, the optimal thing for people to do is to threaten to switch as a group if the ISP doesn't give in to their demands, right?

The problem is that not all of these people have considered the proposition and even among those who have, they aren't organized. Organization is expensive. How do you find the like-minded people? How do you get a consensus on which ISP to switch to/from and when? Who negotiates with the corporation on behalf of the customers? If you have to carry out a threat, how do you make sure enough people follow through on it to make the desired impact?

The cost of organizing is frequently prohibitive, but without it the optimal outcome is not achieved. The market fails to serve its function. That is why people turn to regulation: It has the potential to achieve the desired outcome without having to overcome the organizational costs that the market can't.

+1 Using regulation rather than a one-off organization for changing ISP's minds takes advantage of the costs we're already sunk into an organization devoted to dealing with national-scale problems.